Tavarez v. O'MALLEY
| Decision Date | 08 August 1986 |
| Docket Number | No. 85 C 4283.,85 C 4283. |
| Citation | 642 F. Supp. 291 |
| Parties | Nydia TAVAREZ, Manny Tavarez, d/b/a LaNydia Grocery, Plaintiffs, v. Michael O'MALLEY, Roy McCampbell, Phillip Mole, Maurice Iorio, Robert Radak, Richard Bacha and County of Cook, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Dan Galatzer, Thomas Grippando, Daniel Galatzer, Ltd., Chicago, Ill., for plaintiffs.
Karen Diamond, Asst. State's Atty., Donald J. O'Brien, Jr., Chicago, Ill., for defendants.
Plaintiffs Nydia and Manuel Tavarez, formerly doing business as "LaNydia Grocery" in Schiller Park, Illinois, brought this suit against City and County officials under 42 U.S.C. § 1983 (1982) alleging that they were deprived of their property without due process of law in violation of the Fifth and Fourteenth Amendments to the Constitution when the individual defendants, in response to a gas heater malfunction, sealed the LaNydia Grocery and denied the Tavarezes access to the store for a period of approximately four weeks. On May 22, 1986, this Court granted summary judgment to the County defendants on the basis that the alleged acts of the two named County officials were random and unauthorized so that pre-deprivation process was not required under Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, ___ U.S. ___, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984), because adequate state remedies existed through which the Tavarezes' rights could be vindicated. Tavarez v. O'Malley, 635 F.Supp. 1274 (N.D.Ill.1986).1 Defendants Maurice Iorio, Deputy Superintendent of the Schiller Park Police Department, Roy McCampbell, Health Officer of Schiller Park, and Robert Bacha, a Schiller Park police officer, have now moved for summary judgment. For the reasons stated below, this Court grants their motion.2
Summary judgment is appropriate in cases where the moving party shows that no genuine issue of material fact exists and that it is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). Furthermore, the motion may be granted even if there are genuine fact issues if, resolving those issues in favor of the non-moving party, the moving party is nonetheless entitled to judgment as a matter of law. Ross v. Franzen, 777 F.2d 1216, 1222 (7th Cir. 1985).
With respect to the Schiller Park defendants, the following facts are not in dispute. On November 21, 1983, the date of the gas leak at the Tavarezes' store, McCampbell and Robert Radak, a Schiller Park police officer, met with Iorio in the latter's office where the three of them, along with County defendant Michael O'Malley, decided that the building in which the store was located should be sealed. All four Schiller Park defendants were at the building on that date. Iorio made the decision to lock and seal the building. Maurice Iorio Deposition at 23. The deposition testimony of the various individuals present reveals that either Radak or McCampbell physically placed the seals on the building, although Bacha had first locked all of the doors with keys he had received from McCampbell. See Roy McCampbell Deposition at 18; Richard Bacha Deposition at 13; Robert Radak Deposition at 12. Submitted in conjunction with this motion was a copy of a Miscellaneous Incident Report filled out by Bacha on which he wrote that he and McCampbell advised Manuel Tavarez that he could not open his business again until he first contacted and was granted permission from the Cook County Environmental Control Department. The deposition testimony of the Schiller Park defendants reveals that none of them knew of any official policy or procedure which they were to follow in ordering and carrying out the sealing of a building. Furthermore, none knew of any procedure for determining when the building could be unsealed. Moreover, none of them knew the source of their instructions to Manuel Tavarez that he should contact the Environmental Control Department.
The Schiller Park defendants are sued in their individual and official capacities. In their complaint, the Tavarezes assert that McCampbell, Radak and Iorio sealed the entrances to the store. Amended Complaint ¶ 12. Furthermore, Bacha and McCampbell allegedly refused the Tavarezes permission to enter the store. Amended Complaint ¶ 14. Additionally, the Tavarezes allege that Iorio, Bacha and Radak were aware that the building remained sealed and that such sealing was improper and illegal and that each had the responsibility, authority and obligation to remove the seals. Amended Complaint ¶ 15. Iorio, Bacha and McCampbell move for summary judgment on the basis that they were not acting under the auspices of any established state (i.e., municipal) policy or procedure, which they argue is a fundamental prerequisite to liability under § 1983. The Tavarezes respond that Iorio, as Deputy Superintendent of the Schiller Park Police Department, was "one of the municipality's authorized decision makers" and that his decision to order the building sealed became a "policy" of Schiller Park.
Counsel on both sides confuse the analytically distinct constitutional concepts of "policy," which is necessary to establish a municipality's liability for the acts of its officials, see, e.g., Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978); Pembaur v. City of Cincinnati, ___ U.S. ___, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), and "established state procedure," which governs procedural due process claims. Although the evidence which might be offered to establish the existence of a "policy" and an "established state procedure" may in some cases overlap, the two remain conceptually distinct. The defendants here argue that they cannot be held liable for their alleged actions because there is no official Schiller Park policy which required their conduct in sealing the Tavarezes' store and preventing the Tavarezes from reentering. The Tavarezes respond that the decision by defendant Iorio to order the premises sealed was sufficient to establish the existence of a municipal policy in Schiller Park under the Supreme Court's recent Pembaur decision. Both parties have missed the point. Since the Village of Schiller Park was not named as a defendant in this suit, the Monell-based "policy" arguments have no place in this motion. Monell and Pembaur deal centrally with municipal liability for the unconstitutional conduct of municipal officials. The concern here is not whether there was a Schiller Park policy to deprive persons of their property by sealing buildings so that the Village would be liable, but whether there was a sufficiently "established" state procedure such that a pre-deprivation hearing was constitutionally required. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).
As discussed in our earlier opinion, Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, ___ U.S. ___, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), held that where the negligent acts of a state official which deprive an individual of property are "random and unauthorized," predeprivation process would be impracticable since it is impossible for the state to anticipate such acts. Consequently, if adequate post-deprivation remedies are available through the state, no actionable due process violation has occurred. Of course, Parratt was recently overruled to the extent that negligent deprivations of property without due process are no longer recognized as violations of the due process clause actionable under § 1983 even if no post-deprivation remedies are available. See Daniels v. Williams, ___ U.S. ___, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, ___ U.S. ___, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986).3 Nevertheless, the analysis of Parratt had already been extended to bar § 1983 actions for the intentional random and unauthorized acts of state officials which result in the deprivation of property so long as an adequate state remedy exists after the fact. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984).
The County defendants to whom we previously granted summary judgment were restricted by an ordinance which provided specific guidance for the sealing of buildings. Thus, it was clear that if they acted as the Tavarezes alleged, they were intentionally circumventing the clear mandate of the County's policies regarding sealing. The problem here is that the Village of Schiller Park had no prescribed method for dealing with situations such as the one which arose when the gas leak occurred at the LaNydia Grocery. None of the Schiller Park defendants was aware of any policy regarding sealing buildings in emergencies. Furthermore, there does not appear to have been a policy controlling when Schiller Park officials could prevent people from reentering a sealed...
To continue reading
Request your trial